Kumar Khamri vs State of West Bengal

Shivakant Prasad, J.—This appeal is directed against judgment and order dated September 14, 2006 and September 15, 2006 passed by the learned Additional Sessions Judge, Fast Track Court, Jhargram, in Sessions Trial Case No. XXVII/January/2006 convicting the accused appellants and sentencing them to imprisonment for life and fine of Rs. 5,000/- each in default to suffer rigorous imprisonment for three years each for the offence punishable under Section 302/34 of the Indian Penal Code.

On 08.11.2000 at about 10.45 A.M. when Suresh Chandra Sahoo @ Badal Sahoo was returning to his house from Nota village by riding a bi-cycle, he was attacked by Kumar Khamri, Sudan Dandapat and Dulal Dandapat, armed with bhojali, tangi and revolver, on the east side of Baldi Junior High School. The accused Kumar Khamri fired from his fire arms at the victim and thereafter all accused persons struck on the victim by their �bhojali� and �tangi.� As a result he died on the spot. On being protested by the prosecution witnesses, accused persons chased and held out threat on them with dire consequences. Many people came there on alarm being raised by the witnesses. The accused persons snatched away money and some papers from the pocket of the victim and fled away with the bi-cycle. It is also alleged that the father of accused no. 1 Nagen Khamri made conspiracy of this murder and fled away elsewhere. The accused persons namely Kumar Khamri S/o. Nagen Khamri, Sudan Dandapat S/o. Mathur Mathur Dandapat and Dulal Dandapat S/o. Dhananjoy Dandapat belong to Akna village. Ananta Kumar Senapati, Birendra Nath Mahapatra, Hariram Doloi and Krishna Prasad Tarai are witnesses to the occurrence whose names appear in the FIR.

Witness No. 1 is the teacher of Baldi Junior High School. Witness No. 2 is a peon of said School. Witness No. 3 belongs to village Nota and witness No. 4 belongs to village Dangra. It is also alleged that many students and teachers of the school had witnessed the incident.

An FIR filed by Mrityunjoy Sahoo, elder brother of the deceased was received by one S.I. of Police, Beliaberah P.S., on 08.11.2000 at 15.45 hours at the P.O. Baldi and forwarded to the Duty Officer through home guard Subhas Gharai, which was received by Beliaberah P.S. at 16.45 hours and Beliaberah P.S. Case No. 38 of 2000 dated 08.11.2000 under Sections 302/120B/379/34 of IPC and 25/27 of Arms Act was started. On usual investigation, Charge-sheet was submitted against the accused persons and the case being committed to the Court of Sessions, Charges were framed to which the accused persons claimed to be tried by pleading not guilty. After the prosecution closed its evidence, the accused persons were examined under Section 313 Cr.P.C. to which they declined to adduce D.W.

The defence case is one of denial of Charges levelled against them which emerges from the trend of cross-examination of prosecution witnesses and that the accused persons have been falsely implicated due to long animosity and political rivalry between the accused persons and the deceased Badal.

The prosecution adduced in evidence following documents during trial -

Ext.-1 FIR proved by P.W.-1; Ext.-2 Statement of Ananta Kumar Senapati under Section 164 Cr.P.C proved by Judicial Magistrate; Inquest report Ext.-5; Seizure list Ext.-6; Sketch Map of the place of occurrence with explanatory index Ext.-7; Ext.-8 is the signature of Sudarshan Pratiher in another seizure list, formal FIR Ext.-9; P.M. report Ext.-10 & Ext.-10/1, Seized alamats being Dhuti, Sari etc. proved as Material Ext.-I collectively; Tota as Mat. Ext.-II collectively; Chappal as Mat.Ext.-III collectively and blood stained soil as Mat. Ext.-IV collectively.

Now, the point for consideration is as to whether prosecution has been able to substantiate charges levelled against accused appellants and as to whether the judgment impugned is tenable in law and in fact.

P.W.-2 Anantalal Dutta, the then Anchal Pradhan is a post occurrence witness who testified the fact that he upon hearing the news that Badal Sahoo has been murdered, proceeded at the P.O. at Badlimore and found Badal lying with injuries on his neck, face, belly, hand and also found abdomen coming out from his stomach where 200-300 people had assembled.

According to P.W.-3 Ananta Kumar Senapati a teacher of the Baldi Junior High School, deceased was his father-in-law. He deposed that the incident took place at about 10.40 A.M. on a morum road besides Baldi Junior High School. When he was arranging line of students for prayer, he heard sound of fire arms. Then he along with P.W.-4 went to road side and found Kumar Khamri to come out from a shop with pipe gun and rushed towards victim. Sudan Dandapat and Dulal Dandapat also came running towards victim. P.W.-3 rushed to the place of occurrence and found Sudan striking on the belly of victim by Bhojali and victim fell on the ground. Then Kumar Khamri struck on neck of the victim by Bhojali and Dulal Dandapat struck on his face and eyes by Tangi. Kumar Khamri held out threat on P.W.-3 and P.W.-4 brandishing the pipe gun towards them. Said Kumar snatched some papers from the pocket of the victim and fled away from the place of occurrence by riding bi-cycle and other two accused persons entered into pulse ground.

P.W.-4 Birendra Nath Mahapatra is a peon of the said School and maternal uncle of the victim. According to him, on 08.11.2000 at 10.40 A.M. he was ringing School bell and students stood in line for prayer, when he heard sound from east side. On looking at the place he found that deceased Badal Babu fell down from cycle. He also found Kumar Khamri running towards him with a pipe gun and Bhojali in his hands. He found that victim was running back for shelter. Then Sudan and Dulal came running there and Sudan struck victim by Bhojali at his belly. Then victim pressed his belly by hand and fell on the ground uttering "Save me, save me". Victim was trying to stand but Kumar struck on his throat by a bhojali. P.W.-4 further stated that he came nearby the place of occurrence but was stopped by accused Kumar by holding threat on them. Accused Dulal struck on the person of the victim by Tangi recklessly. P.W.-4 has witnessed the assault on victim from a distance of 10/15 feet and also saw Kumar snatching some papers from the pocket of the victim and fled away by riding bi-cycle of the deceased. Sudan and Dulal fled away through the field.

P.W.-5 Hiranmay Mondal is a post occurrence witness who came to place of occurrence on hearing at Nota village that Badal Shaw was hacked to death near Baldi Jr. High School by accused persons namely Kumar, Sudan and Dulal where he found the dead body of the deceased. He is a witness to the seizure list Ext.-4/1 in respect of �alamat� being blood stained soil control earth white shirt shoes, one cartries and he is also a witness to inquest over the dead body of the deceased.

P.W.-6 Pradip Kumar Show is the son of the deceased who heard hue and cry from his house and learnt from the villagers that his father was murdered near Baldi Jr. High School and beside the shop of Bikash Giri. At once he rushed the place of occurrence and found his deceased father lying there with severe bleeding injuries and abdomen has come out from the stomach of the deceased. He came to know from Mritunjoy Sahoo P.W.-1, Ananda Senapati P.W.-3 and one Binendra Mahapatra, P.W.-4 that the accused Kumar Khamri, Sudan Dandapat and Dulal Dandapat came out from the tea stall of Bikash and injured his father causing death with the help of �bhojali� and pipe gun and �tangi�. He also learnt that Kumar Khamari was armed with bhojali and pipe gun,Sudan was armed with �bhojali� and Dulal had �tangi� in his hand. Obviously this witness was not present in the place of occurrence where the incident took place but he has stated about animosity between his father and the accused persons on political rivalry and about pendency of several criminal cases by narrating the fact that on 27.01. 2000 father was attacked by the accused persons for which Behaba PS case no. 7/2000 was started which is still pending. On 8.8.1992,Behaba PS case no. 35/92 was started as Nagen Khamari father of Kumar Khamari attempted to commit murder of his deceased father by using tangi, bhojali and bomb for which his father was treated in hospital for a month. In 1985, father of Kumar looted paddy from his land. According to PW 6, about 25/30 cases are pending against them as they belong to Naxal party and Maobadi party. Therefore, prosecution has been able to prove the motive behind the crime.

P.W.-7 Sanjib Routh is the local witness who stated that he was going to his land by the said road where incident took place. On hearing hue and cry he came to place of occurrence and found victim lying on the ground. He along with elder brother Mrityunjoy Sahoo went to the police station to lodge complaint. He heard from the persons stood at the place of occurrence that the miscreants were dressed in black garments and fled away towards the field. In his cross-examination he deposed that he met P.W.-3 and P.W.-4 near the dead body but did not disclose any name of the miscreants at that time.

P.W.-8 Hariram Doloi a local witness and School teacher is a named witness in the FIR who stated on oath that hearing the news, he came to place of occurrence and found dead body of Badal and heard from the persons who had gathered at the place that some unknown miscreants committed the crime. He was declared hostile by the prosecution. So, prosecution does not rely on his evidence.

P.W.-11 Doctor T.K. Biswas held P.M. examination on the dead body of the victim vide the P.M. report Ext.-10. He opined that injuries were caused by sharp cutting weapons which resulted in his instant death. The cause of death according to him was due to shock caused by injuries, homicidal and ante-mortem in nature.

P.W.-12 is Investigating Officer who after completion of investigation submitted Charge-sheet against the accused persons under Section 302/379 of the IPC and 25/27 of the Arms Act. According to PW12, on 08.11.2000 he received a written complaint at place of occurrence at 15.45 hours and sent the same to Beliberia PS through HG Subhas Ghorai by putting his endorsement Exhibit 1/2 for starting a case. U.D. Case no. 9/2000 was started by him and held inquest over the dead body of the deceased vide Exhibit 5. The dead body was sent to Jhargram hospital for PM examination through Constable 2478 Surendra Pratihar PW9. Investigation was started on the basis of a specific case no. 38/2000 dated 8.11.2000 which was started on formal F.I.R by A.S.I. Sajahan Exhibit 9.

On closer of the prosecution evidence, the accused persons were examined under section 313 Cr.P.C. to which they declined to adduce any defence witness. Defence is one of denial of Charges levelled against the accused persons and pleaded that they are all innocent and have been falsely implicated in the case over long drawn rivalry between the parties and being members of the opposite political party.

The learned trial judge held the accused persons guilty of the offences punishable under section 302/34 IPC and sentenced them to suffer imprisonment for life and to pay fine with default clause by the impugned judgement.

Being aggrieved by and dissatisfied with the judgment and order of conviction and sentence appellant prepared this appeal inter alia on the grounds that ignoring the serious infirmities, irregularities and illegalities in the evidence of the prosecution witnesses, the learned Judge relied on their evidence and convicted the accused appellants without appreciating serious omissions and commissions on part of the prosecution to bring home the charges against the accused appellants.

It is contended that admittedly, the incident happened in broad day-light before several eye witnesses who are all interested witnesses and not independent. P.W.-8 Hiraram Doloi categorically stated that the miscreants were unknown persons but the learned Judge without considering the deposition of the P.W.-8 in its proper perspective passed the order of conviction and failed to appreciate the evidence of Sanjib Routh who also stated that the miscreants were unknown persons and the people gathered in the place of occurrence never told him that the accused appellants have committed the offence as alleged by the prosecution.

It is further contended that there is serious omission and contradiction regarding use of weapons by the accused persons by the eye witnesses as stated under Section 164 of the Code of Criminal Procedure and deposition made in the Court but the learned Judge in spite of being pointed out the said anomalies held that there might have been some differences of observation in represent them from memory.

The learned Judge in his findings held that presence of the P.W.-1 at the time of murder is doubtful as such his deposition must have been rejected and all witnesses are interested witnesses.

We do not agree with such submission of the learned counsel for the appellants. It is true that the learned judge has observed with that from the oral evidence of witnesses mainly, P.W.-1, P.W.-3, & P.W.-4, it transpired that presence of P.W.-1 is doubtful unless get support from the evidence of P.W.-3 & P.W.-4, nevertheless, presence of P.W.-3 & P.W.-4 and witnessing the incident is true and finds corroboration with each other but the evidence of P.W.-1 with regard to antecedents of the incident and facts are acceptable as not having challenged by the defence in cross-examination of P.W.-1. On appraising the oral testimony of the said witnesses become to find that credence can be placed on the ocular testimony of P.W.-1 who is an eyewitness to the occurrence.

The trial court has rightly apply the principle held in AIR 2000 SC 2017 wherein it has been observed that merely because one portion of the evidence of eye witnesses is disbelieved does not mean that the courts are bound to reject all of it. None acceptance of their account regarding involvement of the co-accused in the offence would not render their evidence in respect of the involvement of the accused suspect.

We are unable to accept the submission of the learned counsel for appellants that the presence of the P.W.-3 and P.W.-4 at the place of occurrence is doubtful because they have stated in unequivocal terms the prosecution case of perpetrating crime of murder of the deceased by the accused appellants who were well identified by the witnesses during trial. Therefore there is no question of identity of the accused persons involved in the instant case. PW3 & PW4 have also made statement before judicial magistrate under the provision of section 164 of Evidence Act which finds corroboration with their oral testimony deposed before the trial court.

Learned Counsel for the appellants has urged that the learned Judge relying on the evidence bearing serious infirmities and contradiction, has convicted the accused appellants beyond the reasoning. In this context, it is submitted that admittedly the evidence took place in broad day light in presence of several eye witnesses as revealed from the written complaint.

Our attention is also invited to the evidence of Hiraram Doloi, P.W.-8 who has stated during cross-examination by defence that there was no whisper of the names of persons implicated in this case and that he was not interrogated by the Investigating Officer.

It is pointed out that this witness is an independent witness who was present at the place of occurrence but his evidence is not indicative of the proof that the appellants committed the offence alleged by the prosecution.

We are mindful of the fact that P.W.-8 has been declared hostile by the prosecution and the prosecution was permitted to cross-examine the said witness. It is urged on behalf of the defence that since the deposition of P.W.-8 is not considered in its right perspective by the learned Trial Judge, the order of conviction is not sustainable in law liable to be set aside could not be countenanced to by us as we observed that P.W.-8 was declared hostile by the prosecution since this witness did not support the prosecution case but that by itself could not demolish the prosecution case inasmuch as P.W.-1 de facto complainant being the FIR maker, P.W.-3 & P.W.-4 being the eye witnesses to the occurrence have corroborated the prosecution case.

The P.W.-2 Anchal Pradhan is undoubtedly post occurrence witness but he has seen the deceased Badal lying with bleeding injury on the spot.

P.W.-5, P.W.-6 and P.W.-7 are hearsy and post occurrence witnesses. P.W.-5 is a witness to seizure list in respect of �alamat� seized by Investigating Officer and inquest held over the dead body of the deceased vide inquest report. P.W.-9 a Constable was assigned to take the dead body to S.D. Hospital for P.M. examination under a dead body challan and the autopsy was performed on the dead body by autopsy surgeon P.W.-11 vide P.M. report Exhibit-10. All these evidence on record taken together with the P.M. report and the inquest report (Exbt.-5) go to show that the deceased died a homicidal death.

As regards hostile witness it is well-settled law that the evidence of a hostile witness may not be totally rejected, and subject to close scrutiny, a portion thereof which is consistent with the case of prosecution or defence, may be accepted. Equally, the law is settled on the score that where a witness for the prosecution turns hostile, the court may rely upon so much of the testimony, which supports the case of the prosecution and is corroborated by other evidence. That is to say, the evidence of hostile witness cannot as a matter of law be treated as washed up from the record altogether. The evidence of such a witness has to be considered to the extent whether as a result of such cross-examination and contradiction, the witness stands voluntarily discredited or can still be believed in regard to a part of his testimony. If a part of his testimony is found by the court to be creditworthy, it can be acted upon. We do agree that though the P.W.-8 has been declared hostile the entire evidence should not be brushed aside. But his statement in cross-examination by the defence to the effect that there is no whisper of the names of the accused persons it does not mean that the whole of the prosecution case has been demolished.

Learned Counsel for the appellants submitted that Sanjib Routh, P.W.-7 has stated on oath that he was going to his land by road when he heard hue and cry came near the School and found Badal show lying on the ground and then he went to call for dada Mrityunjoy Shaw who was at that time performing worship in Kalimandir besides his house and he came to the P.O. Then P.W.-7 went to Beliator P.S. by motorcycle with him but nothing was written before the P.S. as there was none at the police station. However, the Officer-in-charge told that he would go to the place of occurrence. PW7 heard from the persons stood at the P.O. that the miscreants were dressed in black garments and fled away towards pulses� ground. So, obviously this witness has not claimed to have witnessed the occurrence. According to him, he was at the P.O. till the moving of the dead body and that the deceased was a CPI (M) leader who was later expelled from CPI (M) party and joined Mahajot consisting of Anti CPM party.

P.W.-7 has further stated that the accused persons and father of Kumar Khamri namely Nagen Khamri were supporters of CPI (M) but they became supporters of CPI (M) party about two and half years prior to the incident and that they have been implicated as accused persons after meeting held by Sunil Mudli, Ananta and others. In this context, it is urged by the defence that if the evidence of PW7 is taken into consideration, there was no whisper of the names of the accused persons and that they have been falsely implicated by the prosecution on political rivalry. The evidence deposed by P.W.-7 in our considered view shows a motive behind crime. Since P.W.-7 is a post occurrence witness, obviously he has not seen the accused persons to commit the crime.

The learned Counsel for the appellants have further submitted that there is omission and contradiction regarding use of weapons by the accused persons by the eye witnesses as stated under Section 164 of the Code of Criminal Procedure and the evidence laid before the Court but in spite of anomaly or discrepancy in the evidence, the learned Judge held that there might have been some differences of observation in represent them from memory.

Ananda Kumar Senapati, P.W.- 3 made a statement before Judicial Magistrate, Jhargram on 15th January, 2001 proved as Exbt.- 2/1 which reflects that his evidence deposed before the Trial Court finds corroboration with the statement made before the Judicial Magistrate. This witness is an eye witness and has seen the accused Kumar Khamri inflicting injury on the person of deceased Badal Shaw by �Bhojali.� Sudan Dandapath also attacked said deceased with �Bhojali� and Dulal Doloi with a �Tangi�. When this witness rushed to the P.O. along with others they were stopped by accused persons by show of pistol and they saw them attacking the deceased within 2/3 minutes and run away. In cross-examination P.W.-3 has stated in clear crystal term that he along with other have seen the said three accused persons to commit the murder of the deceased through their eyes.

Birendra Nath Mahapatra, P.W.-4 had also made statement before the said Judicial Magistrate vide his statement Ext.-3 narrating the incident which he has seen at the P.O. According to him, he was peon working in the said Junior High School and on the date of incident on 8th November, 2000 at 10.44 A.M. he attended his School and dusted the table and all the teachers and staff had come to the school. He rang the bell at 10.40 A.M. the student were made to stand in a line for prayer, when he heard sound and looked at the place and found Badal got down from his cycle. He also saw Kumar Khamri running towards him with a pipe-gun and a �bhojali� and found Badal returning back from forward movement then Sudan Dandapat came running from Bikash shop in front of Badal and struck on his stomach by a �bhojali�. Badal pressed his belly with hand and fell down on the ground and uttered "save me, save me". When he was trying to stand, Kumar struck on his throat by Bhojali. P.W.-4 along with other witnesses came near the place of occurrence but were stopped by Kumar by holding threat on them with dire consequences. P.W.-1 found Dulal struck on the person of Badal by Tangi recklessly and Kumar snatched some papers from the pocket of Badal and fled away. When P.W.-4 approached the deceased he found him in a pool of blood, blood was oozing out from the body from different parts. Many persons assembled there. During cross-examination P.W.-4 stated in clear crystal term that first stroke was on the belly and when he tried to reach near deceased Kumar held out threat by show of a pipe-gun towards him. Therefore, we do not find any material contradiction in the ocular testimony of P.W.-3 and P.W.-4 which finds corroboration with the evidence of P.W.-1 the maker of the FIR which finds corroboration in the manner required under the law.

We have found on evidence as discussed above that P.W.-2, P.W.-5 and P.W.-7 are all post occurrence witnesses who have testified having seen the dead body of Badal lying in the pool of blood at the P.O.

P.W.-11, Autopsy Surgeon has proved the P.M. examination report Exhibit-10 which depicts that in the opinion autopsy surgeon cause of death was due to shock was by injuries inflicted on the deceased which are ante mortem and homicidal in nature.

It is true that the deceased was father-in-law of P.W.-3 and he was maternal uncle of P.W.-4 and in this context, it is argued on behalf of the appellants that the learned Trial Judge ought not have convicted and sentenced the accused persons based on the relative witnesses who are largely interested in conviction of the accused persons. We do not agree with such submission in the facts and circumstances of the instant case. Merely because the eye witnesses are related witnesses their evidence cannot per se be discarded. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused persons cannot be a ground to discard the evidence which are, in our considered opinion, cogent and credible and trustworthy. It is settled principle of law as regards the relationship that cannot be a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made.

In case of Dalip v. State AIR 1953 SC 364, Hon�ble Apex Court observed in the following lines -

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."

In the light of the clenched position of law and having appraised the evidence on record we find the ocular testimony of P.W.-1, P.W.-2, P.W.-3 and P.W.-4 ,although related to the deceased, reliable and believable and we hold that the learned Trial Judge has rightly accepted their evidence taken together with the medical evidence adduced by the prosecution before him and has conclusively held the appellants guilty of the offence punishable under Section 302/34 IPC as real culprit and sentencing them to imprisonment for life bearing in mind the said position of law that in awarding sentence many factors such as nature of offence, circumstances extenuating or aggravating of the offence, prior criminal record of the offender with reference to education, home life, society et cetera.

In giving an anxious consideration to the facts and circumstances of the case, we do observe minor contradictions which are due to the fact that the evidence were taken after five years of the occurrence and there is every scope of minor contradiction and discrepancies but the evidence of prosecution witnesses in our view are in agreement on general term. Therefore, we find that the deceased died a homicidal death due to the injuries inflicted on him by the accused appellants which finds corroboration by medical evidence together with the ocular testimony of the eye witnesses.

In the context of what has been discussed above, we do not find any ground to interfere with the findings in the judgment impugned and is accordingly, affirmed.

As a result, the Criminal Appeal being No. 699 of 2006 is dismissed.

Let the Lower Court Record together with a copy of this Judgment be sent down to the learned Trial Court forthwith.

Urgent certified photocopy of this Judgment and order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

Rajiv Sharma, J. - I agree.